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The Union of India and ors. Vs. Ramchand Kishinchand and Co., Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 720 of 1971
Judge
Reported inAIR1974Mad335
ActsRailway Act - Sections 78 and 80; ;Limitation Act, 1908 - Schedule - Article 31
AppellantThe Union of India and ors.
RespondentRamchand Kishinchand and Co., Madras
Cases ReferredFire and Life Assurance Corporation Ltd. v. Janmohamed Abdul Rahim.
Excerpt:
limitation act (xxxvi of 1963), articles 30 and 31--relative scope and applicability--goods delivered to wrong person--case of misdelivery--article 31 applies.;both articles 30 and 31 provide for limitation for suits against a carrier for compensation. it will have to be, therefore, understood in the context of rights and liabilities of a carrier. therefore, the words losing or injuring goods have reference only to the loss or injury while the goods were in the custody of the carrier. non-delivery implies the goods are not known to have been destroyed or lost but could not be delivered to the right person for some reason or other. in fact, if the goods were misdelivered, so far as the rightful consignee is concerned, that would be a case of non-delivery to him. in a case falling under..........of action for compensation was for non-delivery to the plaintiff and not causing of injury or loss of goods. it is true, in one sense, non-delivery is also a loss to the plaintiff. but in the context of the limitation act the loss in article 30 is the carrier losing the goods when they were in the carrier's custody. in the case of misdelivery, the contravention is non-delivering the goods to the proper person and not losing the goods while in custody. on a plain reading of the two articles, i am therefore of opinion that the instant case will fall under art. 31 and not under art. 30.7. in abdulrahiman v. abdul khader. , a similarquestion arose for consideration. it was held therein that non-delivery within the meaning of art.31 means non-delivery as per the instructions or.....
Judgment:
1. The Union of India and the other officials of the Railways who were defendants 1 to 5 in the suit are the appellants. The suit was filed by the respondent plaintiff company for the recovery of a sum of Rs.4780-98 in respect of certain goods despatched by it from Madras to the 6th defendant at Sahranpur in Uttar Pradesh. The goods were consigned on 26-6-1962 from Madras for delivery to self at Sahranpur. The plaintiff forwarded the way bill through the Central Bank of India for the purpose of collection. When the plaintiff came to know from the Station Master at Sahranpur that the goods were delivered to a wrong person on a forged railway receipt, the plaintiff had filed this suit.

2. A number of pleas were raised in defence but only two of them were argued in this second appeal. The first ground argued by the learned counsel for the appellants was that a fraud was committed by the consignee and the goods were taken delivery of on 24-7-1962, by producing a forged railway receipt and that therefore under Section 78(b) of the Railway Act the appellants were not liable for damages. The lower appellate court, after a careful consideration of the entire evidence came to the conclusion that the person who took delivery at Sahranpur was known to the station master and the other officials there and that the goods were delivered on a forged railway receipt due to the gross negligent conduct of the appellants and that the consignee was not guilty of any fraud. I am unable to interfere with this finding for which there is ample evidence.

3. The next point that was urged by the learned counsel for the appellant was that the suit was barred by limitation. In order to understand this contention it is necessary to set out certain relevant facts. On 26-6-1962, the plaintiff consigned the goods addressed to self for Sahranpur. The way bill was sent to the Central Bank of India for collection. On 10-7-1962, the 6th defendant, who had placed the order in pursuance of which the goods were despatched, informed the plaintiff that he was in receipt of the intimation of the despatch of the goods, that the goods had not reached Sahranpur so far and that the goods are expected soon. On 11-8-1962, the Central Bank of India informed the plaintiff that the bill for the sum of Rs.4387-18 had not been cleared by payment. In reply to a letter from the plaintiff, the Agent of the 6th defendant wrote a letter on 17-8-1962, stating that since the 6th defendant was away he could not give any reply regarding payment of the bill and clearance of the goods. In the meantime on 31-8-1962, the plaintiff also received a letter from the Central Bank again intimating that the bill had not been paid and the Bank returned the bill without any further liability on themselves. Thereafter, finding that the bill had come back from the Bank the plaintiff wrote to the Station Master, Sahranpur on 31-8-1962, requesting him to redirect the goods to the plaintiff at Madras, promising to pay the railway freight. On 5-9-1962, the plaintiff received a reply from the Station Master at Sahranpur stating that the goods were cleared by some person on 24-7-1962, by presenting a way bill which was found to have been forged. After a suit notice the suit was filed on 3-10-1963.

4. The trial court held that the suit was barred by limitation under Article 31 of the Limitation Act, 1908 holding that the starting period of limitation of one year under that Article was 24-7-1962 when the goods were cleared on a forged document. In the appeal by the plaintiff before the lower appellate court, it appears that the plaintiff contended that the correct Article of Limitation Act to be applied to the facts of the present case is Article 30 and under that Article the period of limitation will have to be calculated from the date of 'loss or injury' to the goods which had been interpreted by courts as meaning 'from the date of knowledge of the injury or loss of the goods'. The argument was accepted by the lower appellate court and it was held that the plaintiff came to know of the loss only on 5-9-1962 and therefore the suit was in time.

5. In this appeal, the learned counsel for the appellants argued that Article 30 is not applicable to the case on hand but only Article 31 is applicable. Articles 30 and 31 read as follows--

Description of suit Period of limitation Time from which period begins to run

Art.30. Against a carrier for compensation for losing or injuring goods One year When the loss or injury occurs.

Art.31. Against a carrier for compensation for non-delivery of or delay in delivering One year When goods ought to be delivered.

It is the case of the appellants that this is a case of non-delivery of the goods and not a case of 'losing or injuring' goods within the meaning of Art. 30.

6. Both Arts. 30 and 31 provide for limitation for suits against a carrier for compensation. It will have to be therefore understood in the context of rights and liabilities of a carrier. It is well settled that the rights and duties of the railways are those of a bailee and as a bailee the railways are responsible for the safe custody and delivery of goods at the proper time and place. Therefore, the words 'losing or injuring goods' have reference only to the loss or injury while the goods were in the custody of the carrier. It also means destruction or damage to the goods while non-delivery implies the goods are not known to have been destroyed or lost but could not be delivered to the right person for some reason or other. In fact, if the goods were misdelivered it could be traced to the person to whom it was improperly delivered and the goods or its value recovered. So far as the rightful consignee is concerned, that would be a case of non-delivery to him. In a case falling under Article 31, the cause of action for compensation was for non-delivery to the plaintiff and not causing of injury or loss of goods. It is true, in one sense, non-delivery is also a loss to the plaintiff. But in the context of the Limitation Act the loss in Article 30 is the carrier losing the goods when they were in the carrier's custody. In the case of misdelivery, the contravention is non-delivering the goods to the proper person and not losing the goods while in custody. On a plain reading of the two Articles, I am therefore of opinion that the instant case will fall under Art. 31 and not under Art. 30.

7. In Abdulrahiman v. Abdul Khader. , a similar

question arose for consideration. It was held therein that non-delivery within the meaning of Art.31 means non-delivery as per the instructions or directions given to the defendant by the plaintiff. Where the instructions have not been carried out it does not matter to him whether the carrier had delivered the goods to X or Y other than the named consignee. The case of misdelivery of the goods according to the learned Judge will come within the expression 'non-delivery' in Art.

31. A number of cases holding that suits for compensation for misdelivery of the goods will come under Art.31 have been cited in this judgment and it is not necessary to consider every one of them.

8. The learned counsel for the respondent submitted that the words 'losing goods' in Art. 30 will never cover cases of misdelivery also and relied on the decisions in Hill Sawyers and Co. v. Secretary of State (1921) 61 IC 926= (AIR 1921 Lah 1)(FB) and Governor-General in Council (Now Union of India) v. Mussadilal, (1961) 1 Mad LJ(SC) 169. (AIR 1961 Mad 725)(1921) 61 IC 926 = (AIR 1921 Lah 1)(FB) was concerned with the interpretation of the word 'loss' in Section 80 of the Railways Act, 1890. The plaintiffs in that case handed over to the East India Railway Co., a motor car at Delhi to be carried to Lahore and delivered to the plaintiffs who were themselves named as the consignees. The railway receipt was sent by the consignee to the Bank directing it to make it over to M/s. Wilfred and Co., on payment of the price. M/s. Wilfred and Co., however took over the receipt from the Bank and without paying the price of the car took delivery of it from the Railways by executing an indemnity bond. A suit was filed for compensation for loss of the goods under Section 80 of the Railways Act. A Full Bench of the Lahore High Court considered the question as to whether the 'loss' in Section 80 of the Railways Act would include 'loss by mis-delivery'. After noting that in the cases arising under the Common Law of England and the Carriers Act, 1830, the word 'loss' has been interpreted by the English courts to mean 'loss by the carrier and not simply loss to the owner' the Full Bench held, following a decision of this court in Madras and Southern Mahratta Rly. Co. v. Haridoss Banmalidass, ILR 41 Mad 871 = (AIR 1919 Mad 140), that the English decisions were inapplicable. In view of Section 72(3) of the Indian Railways Act, and certain provisions in the Contract Act, the word 'loss' in Section 80 of the Railways Act was then construed to mean as including 'loss to the owner of the goods made over to the railways which have been misdelivered'. It was observed that when there was a misdelivery the goods have been lost to the person entitled thereto. As seen from the judgment, the word 'loss' in Section 80 was construed to have a special meaning in view of the provisions of Section 72(3) and the nature of the suit under Section 80.

8-A. In Governor-General in Council v. Mussadilal, (1961) 1 Mad LJ (SC) 169 = (AIR 1961 Mad 725), the Supreme Court considered the question of the meaning of the words 'loss' and 'non-delivery' in Arts. 30 and 31 of the Limitation Act with reference to the meaning to be given to the words 'loss, destruction or deterioration' under Section 77 of the Railways Act, 1890 and held--

"We are unable to project the provisions of Arts. 30 and 31 of the Limitation Act upon Sections 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of goods does not fall within Section 77. The view we have expressed is supported by a large volume of authority in the courts in India."

and cited ILR 41 Mad 871 = (AIR 1919 Mad 140) as one of those cases. The Supreme Court held in that case that the word 'loss' in Section 77 is to be understood differently from that of the word 'non-delivery' and 'loss' in Arts 30 and 31 and that for the purpose of Art. 77, non-delivery also is included in the word 'loss'. I am therefore of opinion that the instant case does not fall under Art. 30 and the relevant Article for consideration is Art. 31.

9. The next question that arises for consideration is when the period of limitation under Art. 31 begins to run. The third column of this Article provides that the period of one year will have to be calculated from the date when the 'goods ought to be delivered'. The Supreme Court had occasion to consider the meaning of these words in the third column in Bootamal v. Union of India, and held--

"............Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period had elapsed on the expiry of which the delivery ought to have been made. The words 'when the goods ought to be delivered' can only mean the reasonable time taken (in the absence of any term in the contract from which the time can be inferred expressly or impliedly) in the carriage of the goods from the place of despatch to the place of designation. Take the case, where the cause of action is based on delay in delivering the goods. In such a case, the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore, when we consider the interpretation of these words in the third column with respect to the case of non-delivery, they must mean the same thing namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be correct for the words in the third column of Art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver............."

10. After pointing out that wherever the Legislature intended that time should run from the date of refusal it has used appropriate words in that connection, the Supreme Court further observed--

"The very fact that Art. 31 deals with both cases of non-delivery of goods and delay in delivering the goods shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would in our opinion make no difference to the interpretation of the words used in the third column of Article 31."

In meeting the argument of estoppel based on the correspondence, the Supreme Court held--

"If the correspondence is only about tracing the goods that would not be material in considering the question as to when the goods ought to have been delivered. On the other hand, if the correspondence discloses material which might throw light on the question of determining the reasonable time for the carriage of the goods from the place of despatch to the place of destination, then it may be open to the court to take into account the correspondence. Further, if there is anything in the correspondence which has a bearing on the question of reasonable time and the railway wants to go back on that, to that extent the railway may be estopped from denying that. But the correspondence can only be taken into account to determine what would be the reasonable time and not to show that because of the subsequent conduct of the railway the reasonable time got extended by the time taken by the railway in tracing the goods. Where however the correspondence provides material from which reasonable time in a particular case may be found out the correspondence would be relevant to that extent."

11. The Supreme Court ultimately concluded by saying that reasonable time would depend upon facts of each case and that in the absence of any special circumstances reasonable time would practically be the same between two stations as would normally or usually or ordinarily be taken for the carriage of goods from one station to the other.

12. The learned counsel for the plaintiff contended that there is no evidence in this case as to what would be the reasonable time that would normally or usually or ordinarily be taken for the carriage of goods from Madras to Sahranpur. The plaintiff company itself would not know by what train the goods were despatched. As held by the Supreme Court, the burden is on the carrier to prove what is the reasonable time required for carriage of the goods. The learned counsel for the appellants relied on the fact that goods were delivered though to a wrong person under a forged railway receipt on 24-7-1962, that, according to the learned counsel, would show that the goods normally ought to have been delivered on that date to the person legally entitled to receive and after excluding two months from that date for the issue of a suit notice if the one year is calculated from that date, under Art. 31 the suit ought to have been filed on or before 24-9-1963 and that therefore the suit filed on 3-10-1963 was clearly beyond the period of limitation. The learned counsel is well founded in this contention.

13. The goods had reached its destination on 24-7-1962 and in the normal course that was the date on which the goods ought to be delivered and that the plaintiff came to know of it only on 5-9-1962 when the station master informed the plaintiff about the misdelivery is immaterial. In this connection we may usefully refer to one passage in the judgment of the Supreme Court in , where it was

stated--

"Further there may be no difficulty in finding out the reasonable time where the bulk of the goods had been delivered and only a part has not been delivered for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that 'within which the bulk of the goods had been delivered."

In the absence of evidence showing that in the normal circumstances the plaintiff could not have expected the arrival of the goods on 24-7-1962, itself, it should be taken that the reasonable time within which the goods ought to have been delivered ended on 24-7-1962 itself.

14. The learned counsel for the respondent relying on the decision in Union of India v. B. L. N. Sitaramiah, contended that the limitation would run only from the date on which the plaintiff was informed of the misdelivery. Though that judgment was rendered with reference to the limitation under Art. 30 the learned counsel urged that the ratio of that judgment would be applicable to the instant case. It is true that the plaintiff could not have known the non-delivery till it got the letter from the Station Master. But the third column of Art. 31 does not provide for limitation to be calculated from the date of knowledge of non-delivery. The decision in was with reference to loss of goods or injury to the goods. That, as I have already pointed out, could be only when the goods were in the custody of the railways. The starting point is the losing of the goods or the injury to the goods. It is because of that the learned Judges have stated that the knowledge of the damage is essential. So far as Art. 31 is concerned, the Supreme Court has in clear terms held that the limitation begins to run on the expiry of the reasonable time that would normally or ordinarily be taken for the carriage of the goods from the place of despatch to the place of destination. It may be that the plaintiff was innocent and had absolutely no knowledge of misdelivery. It may also be true that he might not have suspected that the goods might not have reached its destination within the reasonable time and therefore he might have waited for sometime. In fact, as was pointed out earlier, there was correspondence with the 6th defendant and the Central Bank and only when the plaintiff got a final reply from the Central Bank that the bill had not been cleared the plaintiff wrote to the station master to redirect the goods without having the least idea that the goods had already been misdelivered. As observed by the Privy Council in General Accidents, Fire and Life Assurance Corporation Ltd. v. Janmohamed Abdul Rahim. AIR 1941 PC 6, in considering such provision (limitation), equitable considerations are out of place and strict grammatical meaning of the words is the only safe guide. There can be no doubt that the reasonable period was not beyond 24-7-1962, when the goods had actually reached the destination and delivered though to a wrong person. The suit is therefore clearly out of time.

15. In the result, the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the decree and judgment of the trial court are restored. The parties will bear their respective costs throughout. No leave.

16. Appeal allowed.


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